The Board of immigration Appeals has ruled in Matter of Martinez-Serrano, Int. Dec. 3666, 25 I&N Dec. 151 (BIA 2009) has ruled that:

(1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i) (2006); and

(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.

The case involves a native and citizen of Mexico who obtained her Green Card on December 1, 1990. Approximately sixteen years later she was convicted for violating 18 U.S.C. § 2(a) (2006) because allowed 15 undocumented individuals to hide in her house. This is a misdemeanor offense, and she was sentenced to 90 days in jail.

She was also charged with violating 8 U.S.C. § 1325(a)(2) (2006) for harboring illegal aliens. This charge was dropped as part of her plea agreement.

In her plea agreement the Respondent admitted that she harbored 15 individuals in her home, that she knew that the individuals were in the United States without authorization, and that the reason she was harboring them was to assist them in eluding examination by Immigration authorities.

The Respondent was placed in removal proceedings and charged with removal under section 237(a)(1)(E)(i) of the Act for knowingly aiding and abetting a noncitizen to enter the United States in violation of law. The respondent denied that she assisted the aliens to enter the country. At the individual hearing the DHS introduced the respondent’s conviction record which included her plea agreement.

The Immigration Judge found that although the evidence showed that the respondent harbored aliens after their entry, there was insufficient evidence to establish that she helped them enter the country illegally. As a result the IJ found that the ground of removal was not sustained by the Department, and terminated the proceedings. The Department appealed.

The Board of Immigration Appeals reviewed the case and concluded that the removal ground that the respondent was charged did not require a conviction, the factual basis for the criminal charges brought against the respondent was tied to their manner of entry, and she maintained a specific intent to harbor them specifically to assist them in eluding inspection or examination by immigration officials.

The Board disagreed with the Immigration Judge's finding that he was precluded from looking at the underlying facts of the respondent’s conviction, and the Board found that the Immigration Judge erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction.

As a result the Board sustained the Department's appeal finding that they established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and as a result she is removable as charged.

The case has been remanded back to the Immigration Judge for consideration of any relief from removal that may be available.